June 2, 2009

Florida Sentencing Guidelines for Jacksonville Criminal Defendants


When a criminal defendant is charged with a felony in Jacksonville, he will be subject to the Florida Sentencing Guidelines.  For most minor felonies, a person will not score a minimum sentence pursuant to Florida's Sentencing Guidelines.  Therefore, he may be able to avoid a prison sentence.  However, there are certain felony offenses that carry enough points to result in a minimum prison sentence, and a defendant's prior criminal record will have an effect on his sentence.  

In most cases, if a Jacksonville Criminal Defendant scores minimum sentence according to the Florida Sentencing Guidelines, the judge will not sentence the offender below the guidelines.  Florida Statute Section 921.0016(4) lists reasons why a judge may depart from the sentencing guidelines  A plea bargain is most common departure from the guidelines, but there are others listed in the statute.  Although a youthful offender sentence is not listed as a reason for a departure from the guidelines, it can be.  More importantly, it can be used to avoid a 10-20-Life Florida prison sentence (See State v. Wooten, 782 So. 2d 408 (Fla. 2nd DCA 2001)).

To learn more about Florida Sentencing Guidelines, contact a Jacksonville Criminal Defense Attorney. If you would like information on Federal Sentencing Guidelines, visit the Second Circuit Sentencing Blog.

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: 10-20-Life , Crimes and Penalties

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May 29, 2009

Jacksonville Domestic Battery Carries Strict Penalties

A Jacksonville Domestic Battery charge is one of the worse misdemeanors that a person can be charged with in Florida.  Most misdemeanors do not carry a mandatory sentence.  However, Domestic Battery and Driving Under the Influence (DUI) carry a mandatory probation sentence.  Under Florida Statute Section 741.281, if a person is either adjudicated guilty of the offense or the adjudication is withheld, he or she must attend the Batterers' Intervention Program (BIP).  While this does not sound too difficult, it can be.  BIP is a six month program and can be very expensive.  It begins with a $30 fee that is due at orientation.  Then, the student must pay $65 for a evaluation.  After that, he or she must attend six months of classes that occur once a week.  These classes can range anywhere from $10 to $50 depending on the student's income.  The defendant is placed on probation to complete BIP.  The probation office charges approximately $60 a month for the cost of supervision.  Not to mention, court costs are almost $1000. Thus, the costs can really add up.  

While BIP may be the proper solution for some Jacksonville Domestic Battery defendants, it is not a perfect fit for all.  However, the law mandates that the court issue BIP for all Florida Domestic Battery guilty or nolo contendere pleas.  The court does not have the discretion that it should when it comes to determining a sentence.  In order to avoid this, it is important to either get the case dropped, achieve a not guilty verdict at trial, or have the prosecutor agree to amend the charges to a lesser offense, such as simple battery or affray.  This should be the goal of any Jacksonville Domestic Battery Lawyer.  

Jacksonville, Florida is not the only city that handles domestic battery cases this way.  Attorney M. Shawn Matlock, wrote an interesting article that discusses the manner in which Fort Worth Texas deals with Domestic Violence cases.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Domestic Battery , Domestic Violence

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May 29, 2009

Crime and Punishment: Defendants Should Not Be Overcharged

As a Jacksonville Criminal Defense Attorney, I get asked, "how can you defend someone when you know he is guilty?"  My answer is, "you must have never committed a crime in your life."  We have all committed a crime at some point, no matter how minor.  Justice is served when the punishment fits the crime.  However, in some cases, a person is charged with a crime that he did not commit.  For example, imagine that a Jacksonville criminal defendant breaks into a car.  In this case, he should be charged with one count of burglary to a structure or conveyance as defined in Florida Statute Section 810.02.  He should not be charged with every other automobile burglary that occurred in that neighborhood.  In some cases, the prosecutor will charge the burglary criminal defendant with the other automobile burglaries, although the evidence does not support it.  This is unfair and a waste of the State of Florida's money.  

A Texas Attorney, Walter D. James III, wrote an interesting article addressing this topic titled, "A Wake Up Call For the USDOJ."  His article address this problem at the federal level.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Burglary , Crimes and Penalties

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May 22, 2009

If I Seal My Jacksonville Criminal Record, Can I Possess a Firearm?

Today, I received an interesting inquiry.  Someone asked me, "if a person has his Florida Criminal Record sealed, can he possess a firearm?"  There are a few reasons that a person may be prohibited from carrying a firearm in Florida as established by Chapter 790 of the Florida Statutes.  Most Jacksonville residents that I have talked with are unable to possess a Firearm due to a prior felony conviction.  Therefore, let us assume that a convicted felon would like to have his record sealed in order to purchase a firearm.  He cannot do this.  

You cannot have your Florida criminal record sealed if you were convicted of a crime.  If a person is a convicted felon, he cannot have his record sealed, period.  However, if he was given a withhold of adjudication, he is not a convicted felon.  Therefore, he may be able to have his record sealed, depending on other circumstances.  If this person is not a convicted felon and does not fall under any other exemption, he can possess a firearm, regardless of whether or not his Florida criminal record is sealed.   

To answer the original question, a record seal will not make a difference as to a person's ability to possess a firearm, because if he cannot possess the firearm due to a felony conviction, then he cannot get the record sealed. If he is eligible to have his record sealed, then he is not a convicted felon and can possess a firearm (unless there is some other condition prohibiting the possession).


To learn more about Firearm possession visit www.guntrustlawyer.com, or contact a Jacksonville Firearms Attorney.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Expunging and Sealing Criminal Records , Seal a Criminal Record

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May 20, 2009

Jacksonville Injunction Hearings: Do I Need an Attorney?

"I have a Jacksonville Injunction Hearing coming up, but I don't know if I should hire an attorney?"  According to Florida Statute Sections 784.046 and 741.30, the answer is "no, you do not need an attorney."  However, failing to hire an attorney to protect your best interests could be devastating to your case.  When a person petitions for an injunction (also known as a restraining order), that person is alleging that you are violent.  If the injunction is granted, you cannot possess a firearm (Florida Statute Section 790.233).  Also, this will reflect on your character when you apply for jobs and can effect professional licenses that you hold.  A Jacksonville Injunction hearing should be taken as seriously as any criminal offense, because if it is violated, you can be arrested for Violation of an Injunction.  Therefore, you should hire an attorney to protect your rights and help prevent the injunction from being issued in the first place.  

Contact a Jacksonville Injunction Lawyer to learn more about defending against a Jacksonville Injunction and Restraining Order.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Injunctions

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May 19, 2009

Jacksonville Restraining Orders are Used for Protection

Jacksonville Restraining Orders are available anyone that is a victim of violence.  A restraining is an injunction that protects the victim from any further violence.  Many Jacksonville residents believe that they must be the victim of some type of "physical violence" before they can petition the court for an injunction, but this is not true.  Violence includes the crimes of assault and stalking which do not require physical contact whatsoever.  Under Florida Statute Section 784.11, an assault occurs when a person intentionally and unlawfully threatens to do violence to the person of another coupled with the apparent ability carry the violence out.  The victim of the assault must be in fear that the violence is imminent and will readily take place.  Stalking can also result in a Jacksonville restraining order.  Under Florida Statute Section 784.048, stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks" and other person.  The harassment must cause substantial emotional distress and fail to serve a legitimate purpose.

If you believe that you need a Jacksonville Restraining Order, contact a Jacksonville Attorney that will Petition the Court for an Injunction for Protection.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Injunctions

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May 11, 2009

Jacksonville Romeo and Juliet Law Prevents Sex Offender Registration

1176416_couple_walking.jpgWhen Jacksonville criminal defendants plea guilty or no contest to any of the sex offenses listed in Florida Statute Section 794.011, 800.04, or 847.0135(5), they must register as Florida sex offenders twice a year.  In Jacksonville, registering as a sex offender can be a tedious and embarrassing process.  Jacksonville sex offenders have the obligation to register at least twice a year.  They must register during their birth months and six months after that birth month.  If a person does not register by the end of the required month, he or she can be charged with a third-degree felony.  This is punishable by a maximum of five years in Florida State Prison.  Additionally, as the Florida guidelines stand, a defendant charged with Failure to Register as a Sex Offender will score a minimum of 21 months.  Thus, a Jacksonville sex offender is looking at a sentence of 21 to 60 months in the Florida State Prison.

Florida's Romeo and Juliet Law can help some Jacksonville sex offenders.  According to Florida Statute Section 943.04354, person charged under any of the Florida Statutes listed above can be removed from the Jacksonville sex offender registration requirement if the following criteria is met:

  1. he or she has never plea guilty or no contest to any other sex offense described in the statutes above;
  2. the only reason he or she must register is due to the violation in question; 
  3. he or she is not more than 4 years older than the victim; and
  4. the victim was between 14 and 17 years old.  

Contact a Jacksonville Sex Crimes Lawyer for information about Jacksonville sex offenses.  


Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Sexual Battery

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May 8, 2009

Innocent Man Released After Intense Investigation

946231___prison__.jpg"Thirty-year-old convicted murderer, Thaddeus Jimenez, was released from prison after serving only sixteen years on a fifty-year prison sentence."  When people here something like this, they can't believe it.  Why are we letting violent criminals out of prison?  The answer: he is innocent.  That being said, let's rephrase the headline:  "Wrongfully convicted man is exonerated after serving sixteen years in prison for a murder that he did not commit."  Mr. Jimenez was arrested for the murder at age 13 and spent the last 16 years trying to prove his innocence.  

How does this happen?  The facts did not change.  Mr. Jimenez did not jump into a time machine and stop the murder from occurring.  The reason this case was overturned was due to the hard work of many criminal defense attorneys. Criminal defense attorneys that dedicated many hours to further investigating this case, so they would be able to support a motion to vacate the conviction.  After several years, these attorneys were able to succeed.

While Mr. Jimenez has been vindicated, there is one thing that he can never get back.  The 16 years of incarceration he has served.  The time away from his family and society.  The lost of education and experience.  When Mr. Jimenez was incarcerated, cell phones were not the norm, self-check out at the grocery store did not exist, and "who is this Britney Spears?"  He has to learn about a new culture and changed society.

This case is a prime example of why early investigation in a case is so important.  All of the Jacksonville criminal defense attorneys that I have talked to about this agree that you must always be at least one step ahead of the prosecutor.  The only way to do this is to investigate every aspect of the case in more detail that the prosecutor has.  The earlier that a Jacksonville criminal defense attorney does this, the better.  Time is critical in criminal cases; thus, you cannot waste it.  

To learn more about Mr. Jimenez's case, visit the Chicago Sun-Times.  If you need help with a Jacksonville criminal case, contact a Jacksonville Criminal Defense Attorney.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Evidence , Murder

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May 7, 2009

Florida Bomb Threat at a St. Augustine High School

1173688_high_school_woes.jpgIn St. John's County, Florida, students attending St. Augustine High School had to evacuate their school due to a bomb threat.  The students were sent to Sebastian Middle School.  Later, the middle school also received a bomb threat, and all students were evacuated.  While bomb threats at a local school may seem like a childish hoax, it is a serious criminal offense in Florida.  According to Florida Statute Section 790.163 and 790.164, a person that makes a bomb threat will be charged with a second-degree felony.  Second-degree felonies are punishable by up to 15 years in the Florida State Prison.  Also, these Florida bomb threat statutes specifically state that a judge may not withhold adjudication of guilt.  Therefore, this charge will result in a criminal conviction that can follow a person for the rest of his life.  

If you have any questions about bomb threats in Jacksonville or the surrounding areas, contact a Jacksonville Criminal Defense Attorney.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Bomb Threats

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May 4, 2009

Jacksonville Possession of a Firearm by a Convicted Felon: What About Antique Firearms?

571496_peacemaker.jpgCan a convicted felon possess an antique firearm in Jacksonville, Florida?  It appears that the Florida Supreme Court has not directly answered this question.  According to Florida Statute Section 790.23, a convicted felon is prohibited from possessing a firearm.  This crime is known as Jacksonville Possession of a Firearm by a Convicted Felon.  Florida Statute Section 790.001(6) defines "firearm" and specifically exempts antique firearms, unless it is used in the commission of a crime.  From the plain language of these Florida laws, it would seem obvious that a Jacksonville convicted felon may possess an antique firearm since it is not prohibited by the statute.  However, Florida case law does not support this rationale.  

In Williams v. State, 492 So. 2d 1051 (Fla. 1986), the Florida Supreme Court ruled that Section 790.23 could not be construed to allow a convicted felon to possess a concealed firearm, even an antique firearm.  Florida's 5th District Court of Appeals addressed this issue in Bostic v. State, 902 So. 2d 225 (Fla. 5th DCA 2005).   In Bostic, the court stated that "the firearm a convicted felon is prohibited from possessing excludes an antique firearm."  However, the court did not grant the defendant's motion to dismiss, because the trial court ruled that the firearm in question was not an antique.  

After reading these Florida cases, it appears that the law is unsettled on the issue of whether a convicted felon can possess an antique firearm in Jacksonville.  I agree with Judge Sharpe's dissent in Bostic.  He stated that the law either (1) clearly permits possession of the antique firearm or (2) is unconstitutionally vague.  

For more information on this subject, visit NFA Gun Trust Lawyer Blog or contact a Jacksonville Gun Lawyer.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Gun Crimes , Possession of a Firearm by a Convicted Felon

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April 22, 2009

U.S. Supreme Court Limits Vehicle Searches

In the recent United States Supreme Court decision, Arizona v. Gant, the Court limited a police officer's ability to search a criminal defendant's vehicle.  Prior to this ruling, there was a debate as to whether police officers may search the passenger compartment of a vehicle when an occupant of the vehicle is arrested.  This is known as a search incident to arrest, which allows police officers to search a vehicle without a warrant.  In Gant, the Supreme Court ruled that law enforcement may conduct a search of a vehicle incident to arrest only in two situations:

  1. At the time of the search, the defendant is within reaching distance of the interior of the vehicle, or
  2. the officers have a reasonable belief that the vehicle contains evidence of the offense for which the defendant is being arrested.
The Gant case is a push in the right direction to protect everyone's 4th amendment rights as applied to the State of Florida via the 14th amendment.  As a Jacksonville Criminal Defense Attorney, I have seen many cases that were dismissed due to unlawful searches and seizures.  When a Jacksonville police officer conducts an unlawful search of a defendant's vehicle, he is violating the defendant's constitutional rights.  The proper remedy is to suppress any evidence that the Jacksonville police officer found in violation of the such rights.  

The Gant case will be extremely favorable to any Jacksonville criminal defendant that was subject to a search incident to arrest of his vehicle.  For more information about Jacksonville searches and seizures contact a Jacksonville Criminal Defense Lawyer at (904) 685-1200.

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Search and Seizure

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April 16, 2009

Jacksonville Constructive Possession of a Controlled Substance in a Jointly-Occupied Vehicle

As a Jacksonville Criminal Defense Lawyer, I have handled numerous possession of a controlled substances cases.  Arrests for possession of a controlled substance, such as marijuana or cocaine, occur every day in Jacksonville, Florida.  A person can be in actual or constructive possession of cocaine.  Actual possession occurs when the drug is physically "on" or extremely close to the person.  Constructive possession occurs when the drug is in a location where the person concealed it or has control over it.  

In Jacksonville, in order for a criminal defendant to be convicted of constructive possession, the prosecutor must show the defendant had 
  1. knowledge of the presence of the controlled substance and 
  2. the ability to exercise dominion and control over it.  
Jacksonville constructive possession is difficult to do if the defendant is in a car occupied by more than one person.  In fact, in a recent Florida case, Brown v. State, 34 Fla. L. Weekly D773a (Fla. 4th DCA 2009), ruled that the State of Florida did not prove that the driver of a vehicle was in constructive possession of Xanax which was located in the center console of the vehicle.  The driver and a passenger were in the vehicle, and either one of them could have been in possession of this drug.  The court ruled this way, because the prosecutor failed to present sufficient, independent evidence that the defendant knew about the presence of the Xanax and had the ability to control it.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Drug Crimes

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April 15, 2009

Alcohol Found on Boat Involved in Jacksonville Area Crash

885970_boat.jpgThe Florida Fish and Wildlife Commission (FWC) have been investigating the boat crash that occurred on the Intracoastal Waterway in Palm Valley between Jacksonville and St. Augustine, Florida.  The FWC discovered alcoholic beverages in the boat and are investigating whether the driver of the boat was under the influence of alcohol.  In the Jacksonville area, it is not illegal to have open containers of alcoholic beverages in a vessel.  However, it is illegal to drive a vessel if you are impaired by alcohol.  This is known as boating under the influence (BUI).  Thus far, no one involved in Sunday's Intercoastal boating accident has been charged with BUI, but the FWC is still looking into it.  Even if the FWC can show that the driver did consume alcohol, this is not enough to charge a person with BUI.  It is not illegal to have a drink or two and drive a boat.  However, it is illegal too drink too much, or be drunk, and operate a boat.  


Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Boating Under the Influence (BUI)

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April 14, 2009

Florida Boating Accident Claims Five Lives

548715_boat_wake__4.jpgOn Sunday, a 22-foot boat crashed into a tug that was docked in Palm Valley, Florida.  The boat was traveling from St. Augustine to Jacksonville, Florida.  Five people were killed and several others were injured.  Witnesses claim that the boat was traveling at a high rate of speed.  Moreover, the Florida Fish and Wildlife Conservation Commission is investigating the circumstances surrounding the crash, including boating under the influence.  

In Jacksonville, Florida, Boating Under the Influence (BUI) is treated very similar to Driving Under the Influence (DUI).  Florida Statute Section 327.35 prohibits a person from operating a vessel if the person is: 
  1. under the influence of alcohol or a chemical substance to the extent that the person's normal faculties are impaired or 
  2. the person has a blood or breath alcohol level of 0.08 or higher.  
The penalties for Jacksonville Boating Under the Influence are similar to Jacksonville DUI penalties with some minor differences.  The most significant difference is that a Jacksonville Boating Under the Influence conviction will not result in a Florida driver's license suspension.  However, it will suspend your boating privileges.  

Contact a Jacksonville BUI Attorney if you have questions about Boating Under the Influence. 


Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: Boating Under the Influence (BUI)

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March 30, 2009

Jacksonville Hardship Licenses for Driver's with Prior DUI Convictions

When a Jacksonville driver receives a Driving Under the Influence (DUI) conviction, his driver's license is suspended.  The more prior Jacksonville DUI charges that a driver has, the longer the suspension.  However, most people are eligible for a Florida hardship license, even if they have prior Jacksonville DUI convictions.

According to Florida Statute Section 322.271(2)(a), a hardship driver's license cannot be granted to a person that has: 
  1. been convicted of DUI two times or 
  2. had his license suspended for refusal two or more times.  
This Florida law does not make an exception for Florida drivers with a refusal suspension.  However, Florida Statute Section 322.271(2)(b) allows a Jacksonville driver that has been previously convicted of DUI to petition for a hardship license, but there is a waiting period.  A Jacksonville DUI that resulted in a five year license suspension has a 12 month waiting period, and a Jacksonville DUI with a ten year license suspension has a 24 month waiting period.  After the waiting period has expired, a Jacksonville DUI lawyer can petition the department of motor vehicles and establish the basis for granting a hardship license.  

Posted by Jacksonville Criminal Defense Lawyer Cynthia M. Veintemillas | | Email This Post

Posted In: DUI / DWI - Driving Under the Influence , Driver's Licenses

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