Recent Updates
October 15, 2009
Consent to search inside of vehicle does not extend to locked containers
October 14, 2009
Making phone calls to get drugs for personal use not a felony
October 07, 2009
Duval County schools agree to reduce number of students getting arrested
October 07, 2009
High standard needed to get Orchestrator enhancement
October 01, 2009
Light Most Favorable to the State is not the Law
Criminal
Consent to search inside of vehicle does not extend to locked containers
October 15, 2009
The Fourth District Court of Appeals in J.J.V. v. State ruled that a search of a locked center counsel of a vehicle was unreasonable when the driver had only given the officer permission to search the inside of the vehicle. The court relied on a test put forth in the Florida Supreme Court case State v. Wells, 539 So. 2d 464, where the court stated that a person has two distinct interests that must be protected:
Making phone calls to get drugs for personal use not a felony
October 14, 2009
The Supreme Court held in Abuelhawa v. United States that making phone calls in order to obtain drugs for personal use was not a felony under 21 U.S.C. § 843(b). This section of the United States Code makes it a felony to facilitate the commission of a drug felony, which in this case would have been the sale of the drugs to the defendant. However, the Supreme Court rejected this idea stating that stating that Congress intentionally made different levels of punishment for buying and selling drugs. Therefore, it would be adsurb to make every purchase in essence a sale because it is axiomatic that a seller must have a buyer. If Congress wanted to make the punishments equal, they could have done so. To read this in the manner the government proposed would be to eliminate the prosecution of purchases and treat all parties to a transaction as a seller.
Duval County schools agree to reduce number of students getting arrested
October 07, 2009
The Florida Times Union reported today that Duval County School officials have agreed to stop arresting all students who commit crimes, particularly petty crimes on school campus. The zero tolerance policy of crime on school campuses is being curtailed to include serious crimes and threats of violence.
The full article can be read here. If you know of a juvenile who has been arrested and needs a Florida juvenile defense attorney, contact our office at 904-731-3800.
High standard needed to get Orchestrator enhancement
October 07, 2009
The 11th circuit, which is among the more conservative courts in the US struck down a four level enhancement for a defendant where the government produced no evidence of that a defendant was the orchestrator of drug smuggling operation other than statements made in a PreSentence Report. In the case of Martinez v. U.S. the court held that "[w]hile a person who orchestrates a transaction may also be one who authorizes and supervises the transaction, the orchestrator just as easily could be a subordinate charged with dealing with the relatively minor details of completing that transaction."
The client Martinez' counsel did an excellent job of making written objections to the PSR and followed up with them at the sentencing hearing. In essence, this case is one of the government relying too heavily on the PSR and not proving its case at a sentencing hearing. When that occurs, defense attorneys need to be prepared to pounch. Our Jacksonville Florida criminal defense attorneys ensure that the government at every turn is held to its standard of proof.
Light Most Favorable to the State is not the Law
October 01, 2009
The Fourth District Court of Appeal reversed a conviction of a defendant charged with Lewd and Lascivious behavior because the trial judge applied law that was clearly not correct. The appellate court was abnormally critical of the trial judge who allowed in damaging and likely irrelevant prior bad acts of the defendant under only a "light most favorable to the State" standard.
St. Mary's Police department fires officer
September 30, 2009
A St. Mary's police officer was fired after posting inappropriate material on his Facebook page. As it turns out, the officer had been fired from two previous jobs for reasons including looking at child pornography.
Fatal Jury Instruction results in Reversal of Conviction
September 30, 2009
In a bizarre case, the Fourth District Court of Appeals reversed the conviction of a Broward County man for carrying a concealed weapon by a convicted felon and battery on a law enforcement officer when the judge instructed the jury on the non-existent crime of "possession of a concealed weapon by a convicted felon." The judge made matters worse when he instructed the jury on the issues of actual and constructive possession of a weapon when neither of those issues were relevant to the issues presented in the case. Because the instructions were clearly improper and likely confused and mislead the jury, a new trial was ordered.
Convictions for aggravated battery, robbery with aggravated battery and burglary with aggravated battery violate double jeopardy
September 30, 2009
The Fourth District Court of Appeals ruled that a Defendant could not be convicted of aggravated battery if he was also convicted of burglary with an aggravated battery and robbery with an aggravated battery. The court reaffirmed the long held notion that a defendant cannot be punished twice for the same crime, if all the same elements are present in both offenses. An aggravated battery is a battery with a deadly weapon or battery which results in serious bodily injury or disfigurement. These same elements are present in the burglary and robbery charges. Therefore, the court vacated the conviction for aggravated battery because it violated the double jeopardy rights of the defendant.
Local Contractor arrested for Theft from Customers
September 25, 2009
The Florida Times Union reported that the State Attorney's Office has charged a Jacksonville contractor with stealing from customer by taking deposits for work and not doing any work. The stated defense is that the business went under and that was why work was not being done. However, deposits are supposed to be segregated and not used for other work so deposits should be available to give back to customers in that instance. The contractor is being held on a $500,006 bond, a bond normally reserved for murders, rapists, etc. Regardless of feeling about how distateful this alleged crime is, this bond shows that bonds in Jacksonville are out of control for an economic crime to be held in jail. If the State wants to seek jail time, they are certainly entitled to do so, after the defendant has been found guilty or pled guilty.
Interestingly enough the State is also considering charging the salesperson who worked for the contractor. The salesman stated that he played no role in the conspiracy and that the contractor owes him money for commissions as well. This will be a much more difficult case to prove, assuming the contractor does not cooperate and implicate the saleperson to the State or there is no other evidence not in the paper.
To read about this case, click here.
Officer's belief that "something was not right" not enough to enter an apartment
September 23, 2009
The Second DCA in Daytona Beach reaffirmed that police need more than a feeling to enter and search a home or apartment without a warrant. In the September 9, 2009 decision of Byrd. v. State, the court held that a police officer following a man into an apartment on the feeling that something was not right about the man's darting into said apartment was not an exigent circumstance sufficient to allow the police officer's entry. The United State Supreme Court has stated that either an emergency or other very limited exceptions allow a police officer's search without consent and without a warrant.
Jacksonville man's conviction for Possession of Burglary Tools reversed
September 21, 2009
The First DCA reversed a conviction for possession of burglary tools where the State failed to prove that the defendant possessed a pair of wire cutters for the purpose of entering a dwelling. Possession of burglary tools may be one of the most filed charges that is not sustained by the evidence.
If you have been charged with a crime in Jacksonville, St. Augustine, Nassau county, or St. John's county, call the Florida criminal defense lawyers at Arnold & New at (904) 731-3800.
Pat down illegal where officer had no probable cause to believe Suspect armed or dangerous
September 21, 2009
The Second District Court of Appeal ruled a patdown search of a defendant after a traffic stop was illegal because officer could not articulate a reason to believe the driver was armed or dangerous. As a result, a trafficking amount of drugs was suprressed, likely resulting in the defendant's case being thrown out.
This is an extremely common fact pattern, one we have sucessfully been able to get charges thrown out before. If you have been arrested due to a police search, call Arnold & New at (904) 731-3800.
Charges Dismissed based upon Illegal "Protective Sweep" of House
September 16, 2009
The 3rd DCA dismissed marijuana possession and cultivation charges against a Miami man when it found that the police entry into the house was illegal. The court upheld the important notion that an arrest or detention in the front of a house does not give the police the ability to enter the house with exigent circumstances or a reasonable belief that a crime was being committed or someone inside the house may be in danger.
Madame Bovary Not Relevant to Defendant?s Deviant Behavior Pattern
September 14, 2009
The defendant in Sellers v. State, 34 Fla. L. Weekly D1657a, was sentenced to three years in prison and then placed on ten years’ sex offender probation after pleading guilty to numerous counts of possession of child pornography. Shortly after being released from prison, probation officers searched his residence and found hundreds of videotapes. From the selection, probation officers randomly selected five videos and two books. Based on the content of these materials, an affidavit of violation of probation was filed for possession of pornographic, or sexually stimulating visual or auditory material that was relevant to the defendant’s deviant behavior pattern.
Liquid Bombers Get Sentenced
September 14, 2009
Three guys who we have absolutely no sympathy for are the three Liquid Bombers who plotted to blow up planes in England with liquid that would explode and ignite the liquid with a battery. These of course are the knuckleheads who have caused all of us to not be able to carry on liquid more than three ounces on the plane.
Read about it here
"Half-done hairdo lands woman in jail"
September 14, 2009
Criminal cases often troubling, but sometimes are the funniest, and many of these cases seem to happen in Gainesville for some reason. Below is a portion of an article in today's Gainesville Sun for a aggravated assualt and false imprisonment (the false improsonment charge seems shaky) over a haircut:
"A Gainesville woman wound up in jail early Monday morning following a dispute over a partially completed hairdo.
Chanda Davina Warren, 21, was arrested by Gainesville Police and charged with aggravated assault and false imprisonment for an incident that was reported at 2 a. m.
In an arrest report, Police Officer Jesse Bostick said Warren was fixing Brittany B. Page's hair inside Warren's apartment in the Forest Green complex at 3101 N. E. 15th St.
According to witnesses, Warren told Page she would finish the hairdo later and that Page should pay her so that she could pay some of her bills. Page reportedly told Warren she would not pay until her hair was finished.
Warren allegedly told Page she needed to pay something. Witnesses said Warren started walking toward Page with a pair of scissors in her hand and said "I am going to cut your hair"
Read the full article here.
Forcible DUI Blood Draws
September 14, 2009
The Jacksonville Florida Times Union today had an article about forcible blood draws. Although a blood draw seems to be a better alternative to breath samples, studies show they are still not reliable. This debate also rages across the country where citizens refuse to take breath tests are being forced to give blood samples. Florida has no specific proceedure for the taking of blood. Further, compelling evidence to be given in a misdemeanor case violates the jurisprudence of Florida. Criminalizing breath sample refusals is additionally wrong, but because the Legislature has authorized it, there is very little that can be done with it. In the end, opponents of existing DUI laws is an opinion crime. Even with blood alcohol content, the .08 level is arbitrary and not truly indicative of whether someone has had too much to drink in many cases. Many persons should not drive at levels below .08 while others may be safe.
An experienced Florida DUI defense attorney can help you with you DUI case. We have handled literally thousands of DUI cases and we are available for a free consultation to discuss your DUI case. Contact us today!
Orlando drug trafficker gets 15 years
September 11, 2009
From the Orlando Sentinel
A leader in a Central Florida drug trafficking ring has been sentenced to 15 years in prison, the Florida Attorney General's office reported today.
Desmond Gordon of Lake County was charged with three counts of trafficking 400 or more grams of cocaine, trafficking more than 25 pounds of marijuana and dealing in stolen property.
Investigators learned about Gordon's involvement in the drug operation through wiretaps and undercover surveillance. State prosecutors are also prosecuting more than 40 other members of the drug ring.
The investigation was conducted by the Lake Net Task Force, which included the Lake County Sheriff's Office; the Florida Department of Law Enforcement and the Office of Statewide Prosecution.
Gordon, 29, forfeited six vehicles, several trailers and pricey car accessories.
Obviously, there are serious charges and require serious legal representation. If you face drug charges in Florida, call the law office of Arnold & New.
Supreme Court rules use of Lab Report Violates Confrontation Clause
September 11, 2009
The Supreme Court of the United States ruled recently in the case of Melendez-Diaz v. Massachusetts that failure to call the creator of a report in criminal cases, in most instances, is reversable error. Under the Supreme Court's previous decision in Crawford, witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. The certificates that were sought to be admitted in this case were affidavits and triggered Confrontation Clause protections. The government's arguments that the reports themselves were not "accusatory" witnesses, were "nearly contemporaneous" with their observations, or that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The Court also said that the absence of interrogation was irrelevant, that a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. Finally, the affidavits could not be traditional official or business records.
This ruling confirms what we have been arguing in Florida state courts, particularly in Florida Drug and DUI criminal cases that the analyst, be it breath or drug analyst, have to be compelled to come to court
Gainesville woman charged with filing false police report
September 02, 2009
The Gainesville Sun reported today that a woman was arrested for false report of a crime to Gainesville police officers that she had been beaten and robbed. The police reported that further investigation showed that it may have been merely a dispute over money owed for a beer purchase. Several witnesses came forward and contradicted the woman's story. A link to the story is listed here.
Often times, the police and perhaps even the prosecution have spent considerable time and effort on a case, only to later believe that the person who reported the crime is lying. These can become stressful situations quickly as the victims of the offense are those who are arresting and charging the offense!
However, all is not lost because the prosecution must still prove that the reporting party, in this case the defendant, knew that the information being given was false. Although the evidence in this case sounds compelling, this can be a difficult standard and settlements of the matter or trial on the merits of the case are options to help get a defendant a favorable outcome if arrested for a False Report of a Crime in Florida.
