Recent Updates
April 28, 2010
State Must Prove Defendant's Knowledge of Driver's License Suspension
April 13, 2010
Sentencing Commission Votes to Eliminate Recent Criminal History Points
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
Criminal
Court rules person taken in handcuffs from scene is arrested, even if later relased
November 25, 2008
The Th DC decided that a person taken from the scene in handcuffs, even if later released because they agreed to become an informant is deemed "arrested" and therefore entitled to all rights and privileges associated with being arrested. The 5th DCA applied the test for being arrested by the Florida Supreme Court in Melton v. State, 75 So. 2d 291 (Fla. 1954),, where the court stated the following four elements need to be weighted:
(1) a purpose or intention to effect an arrest under a real or pretended authority; (2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) a communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.
The State attempted to argue that the Defendant was detained and searched but not arrested because they were not booked into the jail. This was rejected by the Court by looking at the "Stop and Frisk" law, which is the law that allows police to temporally detain suspects.
Section 901.151 of Florida Statutes allows a law enforcement officer temporarily to detain a person when he or she encounters that person under circumstances that reasonably indicate that such person has committed, is committing, or is about to commit a crime. Subsection (3) limits this by saying
No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof. (Emphasis added by the Court)
The Court stated that "(w)e agree with our sister court in the First District that this statute explicitly indicates that "an investigatory stop may not extend beyond the place of the initial encounter." See Kollmer v. State, 977 So. 2d 712, 715 (Fla 1st DCA 2008). Likewise, we agree with the Third District's formulation of this principle:
Where . . . the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest. . .
Saturnino-Boudet v. State, 682 So. 2d 188, 193 (Fla. 3d DCA 1996), review dismissed, 689 So. 2d 1071 (Fla. 1997); see also Hayes v. Florida, 470 U.S. 811 (1985)."
In the end, the court found that taking the defendant from the scene to see if the person would be an informant was no different than taking the defendant to the police station for questioning.
This case can be found at Florida Law Weekly 33 Fla. L. Weekly D2648a
Giving Substantial Assistance does not toll speedy trial rights
November 25, 2008
The 5th DCA recently reitereated the rule that once a person is arrested, even if that person agrees to become a confidential informant, "work off" their charges, or in any other way agree to give substantial assistance to police does not waive the defendant's right to a speedy trial. In Florida Constitution and the Sixth Amendment to the United State Constitution guarantees the right to a speedy trial. Florida Criminal Rule of Proceedure 3.191(a) states the speedy trial right in Florida is 175 days from arrest.
In essence, there are important and fundamental rights of a defendant which are not waived unless expressly done in writing, usually in front of a magistrate or judge.
"Soda Can" can be a deadly missile
November 25, 2008
The 1st DCA recently upheld a conviction for aggravated battery where a defendant threw a soda can out of a moving vehicle, hitting the alleged victim in the head. The victim was riding a motor scooter down the road in Nassau county when the defendant allegedly leaned out of a van and hit the victim with the can, and proceeded to "flip off" the victim. The court ruled that a soda can could be a deadly missile and that the conviction for under Florida Statute 784.045, specfically 784.045(1)(a)2. Addtionally, the Defendant was guilty of wantonly and maliciously shooting or throwing a missile, hurled object or stone under Florida Statute 790.19.
The case is reported at 33 Fla. L. Weekly D2667a in the Florida Law Weekly.
Juvenile Convicted of Burglary even though no one saw Juvenile take anything from House
November 19, 2008
Juvenile Burglary of a Dwelling and Grand Theft
The 2nd District Court of Appeals recently overturned in part a decision that a juvenile was guilty of Grand Theft. M.E.R. (MER), a juvenile, was convicted of Burglary of a Dwelling and Grand Theft. At trial, a witness testified that MER was seen entering the dwelling of his former girlfriend without permission. When he entered, he was wearing a blue shirt. When he exited the premises, the witness testified that he had taken the shirt off and was holding the shirt under his arm. When the owner returned to the residence, she reported that multiple items were missing with a value of over $400. In order to find that MER took the missing items and be guilty of Grand Theft, the fact finder would have had to assume that MER carried some of these items under his shirt when he left the apartment. When MER was questioned and searched, the missing items were not discovered nor was there any evidence presented that linked him with the stolen items. Because there was no evidence linking MER to all of the items that were stolen, theft of any one of the items that could have been concealed under his shirt would not have constituted Grand Theft. Therefore, the Appeals court overturned the Grand Theft portion of the conviction.
At the Arnold Law Firm, we handle all our cases with personalized service. We are a full-service law firm that is experienced in criminal defense. For more information or to schedule an appointment with an experienced lawyer regarding a juvenile crime regarding a drug or arson charge, please contact us.
Court overturns juvenile's conviction for assault and battery
November 19, 2008
The 2nd District Court of Appeals overturned the probation and order withholding adjudication of delinquency of a juvenile charged with assault and battery after the state failed to disprove an essential element the juvenile's defense. It was undisputed that G.T.J. (Juvenile) was outside of the Mr. Hernandes and Mr. Miranda's apartment when some altercation occurred. Additionally, both parties stipulated that a chase ensued between the Juvenile and Hernandes and Miranda and the Juvenile struck one of the victims with a pole and attempted to strike the with his belt. The Juvenile's defense was that he was that he was walking by the victim's house when they started to chase him. He attempted to flee the area but was pursued by the victims who brandished a knife. The Juvenile admitted that he struck the victims but he did so only in self defense in an attempt to further flee from the area.
The State failed to address the Juvenile's contention that he acted in self defense. When a defendant presents a prima facia case of self defense, the State's burden includes proving beyond a reasonable doubt that the defendant did not act in self-defense. Fowler v. State, 921 So. 2d 708, 711 (Fla. Dist. Ct. App. 2d Dist. 2006) This means that the state must overcome the defense by rebuttal or by inference in its case in chief. The evidence presented by the State did not rebut the testimony of the Juvenile regarding the aggressive conduct of the victims or the fact that they brandished a knife and gave pursuit in a threatening manner. Thus the State's evidence was legally insufficient to rebut the testimony of the Juvenile defense of self defense.
At the Arnold Law Firm, our legal staff includes two former prosecutors and one ex-public defender. That background is invaluable to you if your child is facing charges of a juvenile crime. The process is fast, so you have to move faster in securing the type of aggressive representation that we provide.
Lying to Probation Officer does not mean automatic violation
November 19, 2008
The 5th District Court of Appeals ruled that mere lying to probation officer is not an offense for which you can be violated. In November of 2008, Ms. Denise Andl while on probation was violated for making a false statement to her probation officer regarding a request to leave the county to console her family because of the death of a family member. The family member was surprised to learn of his untimely death. Generally, such conduct is a substantial and material violation of probation. Ms. Andl was prescribed psychotropic medications for her mental health issues but had not attempted to avoid a drug test or otherwise evade her probation obligations. The trial court found Ms. Andl in violation of her probation.
However on appeal, the 5th DCA found that while the lie to the probation officer was willful, it was not so substantial as to warrant finding of a probation violation. This error was attributed to a struggle the dosages of her medication, recent job loss and loneliness. While there was no excuse for lying to the probation officer and it resulted in an unnecessary waste of time and effort, the lie did not result in a material breach of her probation.
This case is victory for the defense bar because courts usually will rule any transgression as something a probationer can have their probation violated. Our firm continues to monitor important advances and clarifications in probation violation regulations. Our criminal defense attorneys have combined 20 years of experience handling these matters. Please contact us to discuss your probation violation defense needs.
Violent Juvenile Crime up in Jacksonville
November 19, 2008
The Florida Times Union reported on November 19, 2008 that violent juvenile crime is up significantly in Jacksonville over the last year. Our experience has shown that many more children with no prior records of any kind are being arrested. In fact, in many cases, the Jacksonville Sheriff's Office has been arresting all children near the scene of a crime even if evidence of their involvement is minimal. This is likely due to public outcry regarding the legitimate concern that many children in our community are simply out of control.
http://www.jacksonville.com/tu-online/stories/111908/met_357516124.shtml
Our Jacksovnille Criminal Juvenile Defense firm is headed up by Vanessa Zamora, a former juvenile crime prosecutor in Jacksonville who has defended juveniles from petty crimes up to potentially life felonies. In cases that are going to trial, two other experienced attorneys, including Shawn Arnold, a Board Certified Criminal Trial Attorney are available to help.
Please contact us at (904) 731-3800 to discuss your juvenile defense needs.
Courts Certify Conflict over Review of DUI License Suspensions
November 15, 2008
The 2nd District Court of Appeal(DCA) recently certified a conflict with a decision of the 5th DCA over the scope of review of police officer's actions in arresting a person for DUI. A person has the right to a review of a license supsension for a DUI arrest under Florida Statute 322.2615(1)(b)(3). In a very technical argument between the difference between whether an officer has probable cause for an arrest versus the lawfulness of the arrest at a DMV hearing. The 2nd DCA's decision conflicts with caselaw that goes back to 1984 and it is possible that an important constitutional protection, freedom from having your driver's license taken from an illegal arrest may be judicially carved out of the limited protections those arrested for DUI enjoy.
We will continue to follow this and underscores the importance of having experienced DUI defense attorneys handling your DUI defense. Our criminal defense attorneys have a combined 20 years of experience of handling these matters. Please contact us to discuss your DUI defense needs.
