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
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.
Probable Cause Hearing for Civil Forfeiture potentially in trouble
September 02, 2009
The United States Supreme Court has agreed to review the issue of whether Due Process requires states to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture hearing and, if so, when such a hearing must take place. In Florida, civil forfeiture is a mechanism through which the State can seize property that is connected to illegal activity. In order for the State to make a claim on any property, it must establish that the property is contraband, was obtained with the proceeds of crime, or is an instrumentality of a crime. In order for property to be considered an instrumentality, it must be designed or intended for use or have been used as the means of committing a criminal offense. For example, a car used as the getaway vehicle in a bank robbery can be forfeited under the statute.
This process is governed by the Florida Contraband Forfeiture Act, which is found in Sections 932.701-704 of the Florida Statutes (see below). These statutes set out the civil process that the State can use to claim any property that qualifies. It is important to note that these are not criminal proceedings, and the owner of the property does not need to be a defendant. All that being said, if the Supreme Court rules that these hearings are not necessary, then Florida would be able to amend its statute and take away the probable cause hearing.
However, the chances of this occurring are remote. The Supreme Court has ruled consistently that government action which results in the loss of property requires Due Process, in other words, a fair hearing before the property rights are extinguished. We will update this blog with the Court's decision later this year.
