Posted on December 16, 2015 in Civil Rights

Second chances are some of the best opportunities that we can come across in life, especially when it comes to criminal liability. Many criminal systems throughout the country have created systems that allow first-time offenders to undergo rehabilitative treatment in lieu of jail time. Known as Pre-Trial Intervention ("PTI") programs or Deferred Prosecution ("DP"), the participant is allowed to perform community service, take a series of courses, or accomplish some other activity in exchange for a deferment of prosecution. Upon successful completion, the defendant will typically not have a criminal record and will also likely not have to pay legal fees commonly associated with criminal proceedings.

According to Florida Statute Section 948.08, prosecutors in Florida can choose whether to opt for a PTI program as opposed to prosecuting a case against a first-time offender. Typically, if the first-time offender committed a non-violent crime, the prosecution will offer a PTI program in lieu of prosecuting the charge. This program also allows a successful participant to seek the expungement or sealing of his or her record, which can further facilitate rehabilitation.

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 Posted on November 11, 2015 in DUI

Most people know that your license can be suspended when you are convicted of driving under the influence ("DUI"). Few are also aware that there is a process that must be complied with before the defendant's driver's license can be suspended. In Dept. of Highway Safety and Motor Vehicles v. Canalejo, the defendant sought a formal administrative review after his license was suspended pursuant to a DUI conviction.

The attorney for the defendant attempted to issue a subpoena for each officer who was involved with the defendant's arrest. The Department of Highway Safety and Motor Vehicles, however, sent modified subpoenas requesting telephonic appearances instead.

During the hearing, the defendant offered a video showing the 20-minute waiting period that he endured following his arrest, but he stated that he could not properly authenticate the video without one of the arresting officers present. The defendant's attorney refused the court's offer to continue the hearing until a time that the officer could be present, and the hearing officer issued a decision at the hearing.

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 Posted on October 21, 2015 in Gun & Weapons Crimes

According to Florida Statutes § 948.01, judges are vested with special authority to withhold adjudication of a criminal matter. Under this statute, a defendant who enters a plea of guilty or no contest to a felony charge may not be classified as a convicted felon under Florida's current laws. Judges typically opt to withhold adjudication when the defendant does not have a significant preexisting criminal history, or when the defendant does not have any prior felony convictions. If the withholding is granted, the defendant retains his or her right to vote, and under current Florida law, he or she will not lose the right to possess a firearm after successfully completing probation.

Under existing laws, however, a Florida resident can be prosecuted under Florida Statutes § 922(g), "possession of a firearm by a convicted felon" law in federal court even though he or she was granted withholding of adjudication for a felony committed in Florida.

In the recent case of USA v. Clarke, et al., for example, the Eleventh Circuit Court of Appeals stated that federal courts have held in the past that the withholding of adjudication does not preclude federal prosecutors from prosecuting a defendant for violating § 922(g). In reconsidering past decisions dealing with withholdings of adjudication, the Eleventh Circuit has certified the question to the Florida Supreme Court to provide an opinion on the issue. A certified question means that the federal court is asking the state's high court to provide guidance to the federal court on interpreting and applying the state rule in issue.

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 Posted on October 07, 2015 in Criminal Defense

In a recent case, the Florida Second District Court of Appeals considered Florida's rule that a change of address during a parole period can constitute a violation of parole. In Mullins v. State, the defendant was convicted of parole violations on two separate grounds. First, the court concluded that the defendant failed to obtain his probation officer's consent prior to changing his place of residence. Second, the court concluded that the defendant provided his probation officer with false information about the place where he actually lived. Both violations stemmed from the same event: the defendant's relocation.

The probation officer found out that the defendant had changed his address during a routine surprise home visit. When the probation officer showed up at the address listed for the defendant, the defendant was not at home. Although this is not a violation of parole, the owner of the home informed the parole officer that the defendant had moved out.

During the parole violation hearing, the probation officer testified to the exchange she had with the homeowner, which the court failed to exclude on the basis of hearsay testimony. Hearsay is a statement made out of court that is offered for the truth of the matter asserted. In this instance, the parole officer's conversation with the homeowner was hearsay because it was offered to prove that the defendant no longer lived at the address-information about which the parole officer had no independent, personal knowledge.

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 Posted on September 23, 2015 in Criminal Defense

Both Florida and U.S. laws provide protections for people who are either accused or suspected of committing a crime from any improper or illegal activities on the part of government officials like police officers. Some of these rights are well known, like the right to not incriminate yourself and the right to have an attorney present during questioning. One of the lesser-known rights afforded to criminal suspects and defendants is the right to have the matter brought to trial within a certain period of time.

Recently, the Florida Second Circuit Court of Appeals dismissed a case based on the prosecution's failure to bring the case to trial within a reasonable timeframe. In Norton v. State, the defendant was suspected of violating Florida's laws against the so-called doctor shopping. More specifically, the law prohibits an individual who has been prescribed a controlled substance during the last 30 days from providing information about or withholding information about that prescription from another health care provider when that person is attempting to obtain a second similar or identical prescription from the other health care provider. Violations of this statute constitute third-degree felonies.

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 Posted on September 09, 2015 in DUI

With a bustling nightlife scene and miles of beautiful white sandy beaches, South Florida has many opportunities for relaxation and leisure. In many situations, these activities involve enjoying alcoholic beverages, creating ample opportunities for drivers to find themselves being taken into custody on suspicion of driving under the influence. Not every arrest for DUI is a valid one, and many defendants end up facing criminal charges because they did not understand the full scope of their rights.

Knowing when you may be at risk of being arrested for a DUI is the first step to protecting your rights. According to Florida's DUI statutes, the police have the power to arrest someone on suspicion of driving under the influence even when the defendant is not driving. According to Florida law, as long as the defendant has actual, physical control of the car while also under the influence, the officer may arrest him or her on suspicion of DUI.

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 Posted on August 19, 2015 in Violent Crimes

Domestic violence cases typically conjure images of violence taking place in the home, but Florida's law in this area encompasses a multitude of crimes, including false imprisonment and kidnapping. According to Florida law, kidnapping involves the confinement, imprisonment, or abduction of another against his or her will. The act must be done using force, secret, or threat and without any lawful authority.

Additionally, the defendant must possess the requisite intent, which must consist of one of the following:

• The intent to hold the person for reward or ransom, or to use the person as a hostage or shield;
• The intent to facilitate or commit any felony;
• The intent to inflict bodily injury to another, or to terrorize the victim or another individual; or
• The intent to interfere with the carrying out of a political or governmental function.

Kidnapping can arise in a domestic violence case in a number of ways. In 2013, for example, a Pasco man faced charges for domestic and aggravated assault and kidnapping his wife when he forced her to accompany him to dinner at a restaurant. The then 49-year-old man contacted his estranged wife and invited her to his house, intending to make a reconciliation. During the couple's meeting, however, the wife informed the defendant that she did not want to be with him and that she no longer loved him.

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 Posted on August 05, 2015 in Drug Crimes

In a recent case, the Florida Second District Court of Appeal considered the admissibility of confessions and searches in criminal drug cases.

In Thompson v. State, multiple officers traced evidence from the scene of a burglary to a house belonging to the suspect's sister. At trial, the prosecution and defense offered competing evidence regarding the events that unfolded at the home. According to the officers involved with the arrest, the defendant's sister permitted the officers to enter the home, but the sister testified that the officers forced their way into the home after she denied their entrance.

Once inside the house, the police officers asked the defendant if he consented to a search of the room in which he had been staying. Although the defendant refused, he stated that the room contained needles with methamphetamine. After obtaining a search warrant based in part on the defendant's admission, the police officers conducted a search of the room, during which they found illegal drugs, stolen property, and other related items.

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 Posted on July 07, 2015 in Criminal Defense

On June 18, 2015, the United States Supreme Court handed down its opinion in Ohio v. Clark, 13-1352 (June 18, 2015), holding that a trial court's admission of out-of-court statements that a three-year-old child made to his teacher did not violate the defendant's right to cross-examine the child regarding the statements according to the Sixth Amendment of the United States Constitution. Known as the Confrontation Clause, this principle outlines a number of rights for defendants in criminal proceedings, including the right to confront their accusers. This rule has many complexities, particularly when it comes to the admission of hearsay, which is an out-of-court statement offered for the truth of the matter asserted.

In a 2004 case, the United States Supreme Court clarified the scope of this rule, holding that a defendant had the right to cross-examine an individual regarding out-of-court statements when those statements are testimonial in nature. According to the court, a statement is "testimonial when the circumstances indicate that there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

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 Posted on June 24, 2015 in Civil Rights

In a recent opinion, the Florida Second District Court of Appeal discussed the implications of discriminatory practices during the jury selection phase in a criminal trial. In Florida, potential jury members and the parties to a case are entitled to be free from discrimination during the jury selection process. Despite this, an attorney may believe that his or her client will receive more sympathy from a particular race, ethnicity, gender, or another group.

During the jury selection process, an attorney has a limited number of "peremptory challenges" that allow the attorney to exclude a particular tentative jury member from serving on the jury without having to give a reason as to why the attorney does not want that person serving on the jury. When an attorney uses his or her peremptory challenge to excuse a potential juror based on race, ethnicity, or gender, the attorney violates the Equal Protection Clause, denies the parties their right to an impartial jury, and denies the potential juror his or her right to serve on a jury.

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